Credentialing Applications Are “Records” Privileged Under KRS 311.377(2), Subject to the KRS 311.377(3) Independent-Discovery Exception

Introduction

In Saint Elizabeth Medical Center, Inc. v. Hon. Patricia M. Summe (Ky. June 25, 2026), the Supreme Court of Kentucky addressed a recurring discovery dispute in negligent-credentialing litigation: whether a physician’s completed credentialing application—here, “Completed Application Materials” consisting of answers to a hospital credentialing committee’s questions—falls within Kentucky’s peer review/credentialing privilege, KRS 311.377.

The underlying tort allegations arose from Ricky Grimes’ claimed injuries following a Da Vinci robot-assisted surgery performed by Dr. Michael K. Davenport. Grimes sued, alleging (among other claims) that Saint Elizabeth negligently granted Dr. Davenport privileges. During discovery, Grimes sought the Completed Application Materials submitted to Saint Elizabeth’s Credentialing Committee. Saint Elizabeth asserted privilege under KRS 311.377 and sought in camera review. The trial court ordered production unredacted, reasoning the application was not covered by KRS 311.377. The Court of Appeals denied Saint Elizabeth’s petition for a writ of prohibition. The Supreme Court granted relief, reversed, and remanded.

The key issue was statutory: whether the Completed Application Materials are “proceedings” or “records” of a covered entity performing a “designated professional review function” under KRS 311.377(2), and if so, how KRS 311.377(3)’s exception for material “subject to discovery independently” applies.

Summary of the Opinion

  • The Court held that a completed credentialing application submitted to initiate credentialing is a “record” of the credentialing process and is generally privileged under KRS 311.377(2).
  • The Court rejected the Court of Appeals’ distinction between (a) information supplied by the applicant and (b) the committee’s evaluative work product, concluding that the statutory text protects “records” independently of “opinions, conclusions, and recommendations.”
  • The privilege is not absolute: the Court reaffirmed that “otherwise discoverable” information does not become privileged merely because it appears in a peer review file, citing Leanhart v. Humana, Inc.. On remand, the trial court must apply KRS 311.377(3) to determine which parts, if any, are independently discoverable.
  • The Court clarified that the 2018 amendments to KRS 311.377(2) did not overrule Leanhart v. Humana, Inc., emphasizing legislative acquiescence where the General Assembly left KRS 311.377(3) unchanged.
  • Procedurally, the Court held a writ of prohibition lies to prevent compelled disclosure of privileged material, but reminded that the proponent bears the burden of proving privilege and should not shift that burden to the trial court via overbroad in camera review requests.

Analysis

Precedents Cited

Leanhart v. Humana, Inc., 933 S.W.2d 820 (Ky. 1996)
The cornerstone substantive precedent. The Court reiterated Leanhart’s rule that “the placement of otherwise discoverable records and information in a peer review file does not entitle them to the protection of KRS 311.377(2).” The present decision harmonizes that rule with the Court’s new clarification that a credentialing application is itself a privileged “record” under subsection (2), while subsection (3) prevents privilege from attaching to material independently discoverable outside the peer review/credentialing proceeding.
Collins v. Braden, 384 S.W.3d 154 (Ky. 2012)
Provided the writ framework and privilege-burden principles. The Court relied on Collins for the proposition that privilege violations justify extraordinary relief because “privileged information cannot be recalled once it has been disclosed,” and for the requirement that the party asserting privilege must supply sufficient information—not mere assertions— to establish the privilege and permit meaningful review.
St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771 (Ky. 2005)
Quoted via Collins to support writ availability where privileged information is at risk. Its influence is procedural: it underscores irreparable harm from disclosure.
S. Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921 (Ky. 2013)
Used to articulate the standard of review (typically abuse of discretion for writ decisions, but de novo for pure questions of law). Here, because statutory interpretation controlled, the Court applied de novo review to the Court of Appeals’ legal conclusion about KRS 311.377.
Commonwealth v. Grise, 558 S.W.3d 923 (Ky. 2018)
Cited for plain-meaning statutory interpretation. It supported the Court’s textual emphasis that “proceedings, records, opinions, conclusions, and recommendations” are listed as distinct protected categories, undermining the lower court’s attempt to confine privilege only to evaluative/mental-impression material.
Commonwealth v. Bloyer, 647 S.W.3d 219 (Ky. 2022)
Central to the Court’s legislative-acquiescence analysis. The Court invoked Bloyer to reason that when the legislature does not alter a judicial interpretation, that silence is “extremely persuasive evidence” of legislative intent—here, confirming Leanhart survived the 2018 amendments.
Toyota Motor Mfg., Ky., Inc. v. Prichard, 532 S.W.3d 633 (Ky. 2017)
Quoted through Bloyer for the same interpretive principle: failure to amend after a known interpretation implies agreement.
State Farm Mut. Auto. Ins. Co. v. Edwards, 670 S.W.3d 873 (Ky. 2023)
Influenced the Court’s practical guidance on privilege practice. The Court reiterated that in camera review should not be used to “thrust the burden” of privilege determinations onto trial courts; parties should segregate plainly non-privileged materials and present only genuinely disputed material for review.
Sisters of Charity Health Sys., Inc. v. Raikes, 984 S.W.2d 464 (Ky. 1998)
Appears in Justice Nickell’s dissent for the evidentiary maxim that privileges are strictly construed because they contravene the public’s right to evidence, and for the rule placing the burden on the party claiming privilege. While not controlling for the majority, it frames the dissent’s emphasis on rigor in meeting writ and privilege burdens.
Trammel v. United States, 445 U.S. 40 (1980)
Quoted in the dissent (via Sisters of Charity) for the “every man’s evidence” principle. It reinforces the dissent’s preference for narrow privilege construction.
Lexington Pub. Libr. v. Clark, 90 S.W.3d 53 (Ky. 2002)
Used in the dissent to argue that inadequate record support (e.g., insufficient privilege log/document description) prevents a reviewing court from assessing whether the trial court abused discretion—thus justifying denial of the writ regardless of the majority’s statutory interpretation.
Entwistle v. Carrier Conv. Corp., 284 S.W.2d 820 (Ky. 1955)
Cited in the dissent for the “right result, wrong reason” principle: even if the trial court’s rationale was flawed, the outcome (denying the writ) could be affirmed if correct on other grounds—here, Saint Elizabeth’s purported failure to meet writ/privilege proof burdens.

Legal Reasoning

1) Textual reading of KRS 311.377(2): “records” are protected independently

The Court’s central move was grammatical and structural: KRS 311.377(2) protects “the proceedings, records, opinions, conclusions, and recommendations” of a covered entity performing a designated professional review function. The Court rejected the notion—adopted below—that only materials reflecting a committee’s deliberative process (mental impressions, reasons, and evaluative conclusions) qualify. The comma-separated list, in the Court’s view, treats each term as a distinct category; “records” need not embody “opinions, conclusions, and recommendations” to be privileged.

2) A credentialing application initiates and is part of the credentialing function

The Court characterized the Completed Application Materials as integral to the credentialing process because they “initiated the process of obtaining the privilege.” It analogized the submission to filing a complaint that initiates a lawsuit: initiation is part of the proceeding. Thus, the application is a “record” of the designated review function itself, not merely pre-review raw data.

3) Harmonizing broad “record” protection with KRS 311.377(3)’s independent-discovery exception

Having held the application is generally privileged under subsection (2), the Court immediately limited that holding by re-centering subsection (3) and Leanhart. The key constraint is functional: information that is “subject to discovery independently of the proceedings” does not become protected simply because it appears in credentialing records.

The Court therefore directed the trial court to “re-evaluate” the Completed Application Materials under the correct framework: start with general privilege under (2), then determine whether any specific information falls within the subsection (3) exception. The Court did not resolve the item-by-item discoverability question on the existing record.

4) The 2018 amendments did not displace Leanhart

Saint Elizabeth suggested Leanhart might be undermined by 2018 amendments to KRS 311.377(2). The Court disagreed, stressing (i) the amendment expanded/clarified contexts in which the privilege applies but (ii) left KRS 311.377(3) unchanged. Applying legislative-acquiescence principles (Commonwealth v. Bloyer; Toyota Motor Mfg., Ky., Inc. v. Prichard), the Court treated the legislature’s inaction on subsection (3) as confirmation that Leanhart remains controlling.

5) Writ practice and privilege proof

The Court reaffirmed that writs are available to prevent disclosure of privileged material (Collins v. Braden; St. Luke Hosps., Inc. v. Kopowski), and that the risk of disclosure satisfies “no adequate remedy by appeal” because the harm is irreparable. But it also emphasized that on remand, Saint Elizabeth bears the burden to prove privilege and should not use in camera review to offload that burden (State Farm Mut. Auto. Ins. Co. v. Edwards).

Impact

  • Expands clarity (not necessarily scope) of credentialing privilege: The decision squarely rejects a common discovery argument that only deliberative/evaluative credentialing documents are privileged. Credentialing applications themselves are now clearly “records” within KRS 311.377(2) when they are part of initiating and conducting credentialing.
  • Shifts discovery disputes from category-based to item-based analysis: Litigants should expect more granular fights under KRS 311.377(3): even if the application is privileged as a credentialing “record,” specific facts inside it may be discoverable if obtainable independently (e.g., from the physician, licensing boards, prior employers, publicly available sources, or other non-privileged repositories).
  • Increases importance of privilege logs and targeted redactions: By reiterating the burden on the proponent and warning against dumping review onto trial courts, the Court encourages refined privilege logs, segregation of non-privileged information, and pinpoint disputes rather than blanket assertions.
  • Stabilizes Kentucky law post-2018: The Court’s explicit statement that the 2018 amendments did not alter Leanhart reduces uncertainty and discourages arguments that the independent-discovery exception has been implicitly weakened.
  • Practical consequences for negligent credentialing claims: Plaintiffs may find it harder to obtain the hospital’s credentialing application packet wholesale, but will likely pursue the same substantive facts through independent discovery channels—and then use KRS 311.377(3) to seek matching information that appears in the application.

Complex Concepts Simplified

  • “Writ of prohibition”: An extraordinary appellate order stopping a lower court from taking a step (here, compelling production) that would cause irreparable harm. Kentucky treats compelled disclosure of privileged material as irreparable because it cannot be “un-disclosed.”
  • “Peer review / credentialing privilege” (KRS 311.377): A confidentiality rule protecting certain materials generated or used when hospitals and similar bodies evaluate physicians’ qualifications, competence, or privileges, to promote candid review and patient safety.
  • “Designated professional review function”: The covered evaluative activity (such as credentialing) during which KRS 311.377(2) protects the entity’s “proceedings” and “records.”
  • “Record” vs. “opinions, conclusions, recommendations”: The Court treated “record” as its own protected category—meaning the privilege can apply even if the document is not itself a committee’s analysis, but is still part of the credentialing record.
  • KRS 311.377(3) “independently discoverable” exception: If the same evidence can be obtained outside the peer review/credentialing process, it remains discoverable. The privilege does not create a shield for facts merely because they were included in credentialing paperwork.
  • “In camera review”: A private review by the judge to decide privilege. The Court cautioned that parties must first do the work of separating clearly discoverable material before asking the judge to inspect disputed items.
  • Legislative acquiescence: When courts interpret a statute and the legislature later amends the statute but leaves the interpreted portion unchanged, courts often infer the legislature accepted the judicial interpretation.

Conclusion

The Supreme Court of Kentucky established a consequential clarification for credentialing discovery: a physician’s completed credentialing application submitted to a hospital credentialing committee is a privileged “record” under KRS 311.377(2) because it initiates and forms part of the credentialing process. At the same time, the Court reaffirmed—and insulated from post-2018 doubt—the limiting rule of Leanhart v. Humana, Inc.: specific facts and documents that are independently discoverable remain discoverable under KRS 311.377(3), even if they appear in credentialing files.

The decision thus tightens the categorical argument that applications are outside the privilege, but channels future disputes into careful, item-specific parsing of what in an application is independently obtainable—while placing the burden squarely on the privilege proponent to substantiate its claims and narrow the request for judicial in camera review.